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ANTI-DISCRIMINATION LAWS STILL NOT CONSIDERED CODES OF “GENERAL CIVILITY”

GET KNOW HOW

California’s intermediate appellate state court recently ruled in Terris v. County of Santa Barbara that a county employee failed to demonstrate that alleged vulgar, derogatory remarks about homosexuals made by her former employer’s CEO were connected to her termination of employment. As a result, the court upheld summary judgment in favor of the employer and against the former employee in her wrongful termination action.

In Terris, the employee and over thirty others were laid off because of a budget shortage. The former employee, however, claimed that a motivating factor for choosing her to be one of the employees laid off was that fact that the employer regarded her as a lesbian. She further claimed that the employer’s CEO used derogatory slurs to describe homosexuals eight years prior to her dismissal which purportedly substantiated her motivating factor claim. The employer asserted that the CEO was unaware of the former employee’s sexual orientation when he allegedly made the “stray remarks” and that such remarks “were not directed at, or regarding” her.

While analyzing the facts, the court opined that California’s Fair Employment Housing Act (“FEHA”), in part providing employees protection from discrimination, “is not a ‘civility code’” and that “bigoted language alone does not support a FEHA case.” Additionally, the court held that eight years constituted too large a gap between the “stray remarks” and the layoff to demonstrate a causal nexus between the two. Finally, the court found that there was no evidence between the “stray remarks” and the selection of employees to lay off.

The California court’s interpretation that its state anti-discrimination law is not a “civility code” is in line with other cases addressing alleged “stray” and “isolated” discriminatory remarks. The U.S. Supreme Court has opined that Title VII is not a “general civility code for the American workplace.” Instead, the Court opined that in the sexual harassment context Title VII is directed at prohibiting “discrimination based on sex, not merely conduct tinged with offensive sexual connotations.”

States’ highest courts have also adopted this rationale. For example, in West Virginia, the Supreme Court of Appeals has opined that “federal as well as state anti-discrimination laws are not codes of civility. Employers, much as they would like, simply cannot rid the workplace of all instances of inappropriate employee behavior.”

Moreover, in hostile work environment cases, courts have found that offensive incidents, including the use of vulgar language, sexual photos, and name-calling are not always pervasive enough to create a hostile work environment. A number of state cases and federal cases focus on whether a “reasonable person” would construe alleged “offensive remarks” to be so severe and pervasive such that s/he would be compelled to resign employment.

There appears to be mounting pressure to ensure offensive-free forums, classrooms, and workplaces. Some employers may feel compelled to become hyper-sensitive to alleged offensive misconduct. However, U.S. Supreme Court Justice Clarence Thomas recently stated, “At some point, we’re going to be fatigued with everybody being the victim.” In the employment arena, an employee may have a difficult time proving wrongdoing by the employer for permitting offensive remarks to go unchecked when no tangible, adverse employment action has been taken against that employee. The same should be true even if adverse employment action is taken, but there is no connection between the adverse employment action and the offensive remarks, as in Terris.

Based upon the myriad of precedent throughout the country, employers should find some comfort in the fact that courts have recognized that they may not be able to completely rid their work environments of all inappropriate behavior. Off-color, distasteful, and even vulgar remarks may not necessarily result in liability for employers. Nevertheless, employers should promptly and thoroughly investigate alleged claims of workplace misconduct to ensure isolated remarks do not transform into a truly hostile working environment. Employers should also endeavor to ensure their workplace culture is free of offensive and distasteful language, apparel, and content.